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Constitution-Making Gone Wrong


David Landau


Florida State University - College of Law

April 1, 2012

64 Alabama Law Review 923 (2013)
FSU College of Law, Public Law Research Paper No. 587

Abstract:     
With the recent wave of regime change in the Middle East, the process of constitution-making must again become a central concern for those interested in comparative law and politics. The conception of constitutional politics associated with Jon Elster and Bruce Ackerman views constitution-making as a potentially higher form of lawmaking with different dynamics than ordinary politics and states that ideally, constitution-making should be designed so as to be a relatively deliberative process where the role of group and institutional interests is deemphasized. I argue that a focus on achieving deliberation and transformation through constitution-making is unrealistic in certain situations and that theorists should instead often focus on avoiding worst-case scenarios of authoritarian regimes or breakdowns of order. Constitution-making moments must not be idealized; they are often traumatic events. In these situations, the central challenge of constitution-making is not to achieve a higher form of lawmaking but rather to constrain unilateral exercises of power. I use two recent Latin American examples where the constitution-making process was problematic to illustrate the difficulty. If political forces in assemblies are left unconstrained or poorly constrained, they can reshape politics to create a quasi-authoritarian regime (as occurred in Venezuela), or their attempt to impose a constitution on a reticent minority may create a constitutional breakdown (as nearly occurred in Bolivia). Some of the normative recommendations of followers of the dominant model – for example, that constitution-making should be highly participatory and should be undertaken in a specialized constituent assembly – emerge as problematic under this reconceptualization because they may increase the likelihood of a worst-case outcome. Finally, I apply my theory in order to get some analytic leverage on the current constitution-making process in Egypt. Contrary to most observers, I argue that the military may be playing a pro-democratic role by helping to constrain otherwise dominant electoral groups.

Number of Pages in PDF File: 58

Keywords: constitution-making, constitutional theory, comparative constitutional law, Latin America, regime change, democratization

JEL Classification: K33

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Date posted: February 27, 2012 ; Last revised: July 23, 2013

Suggested Citation

Landau, David, Constitution-Making Gone Wrong (April 1, 2012). 64 Alabama Law Review 923 (2013); FSU College of Law, Public Law Research Paper No. 587. Available at SSRN: http://ssrn.com/abstract=2011440 or http://dx.doi.org/10.2139/ssrn.2011440

Contact Information

David Landau (Contact Author)
Florida State University - College of Law ( email )
425 W. Jefferson Street
Tallahassee, FL 32306
United States

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